Updated On: January 22, 2022
BY ACCESSING OR USING TEXTUAL’S SITE AND SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS TO. IF YOU DO NOT AGREE TO THIS TO, THEN YOU MUST NOT ACCESS OR USE THE SITE.
Salient Terms: As provided in greater detail in this TO, you acknowledge the following:
- The Site and Service is provided “as is” without warranties of any kind and Textual’s liability to you is limited; and we will resolve disputes arising under this TO through binding arbitration.
- IF YOU ARE A SUBSCRIBER TO A TEXT MESSAGE MARKETING PROGRAM, OR HAVE A TEXTUAL SUBSCRIBER ACCOUNT, YOU AGREE TO ALL TERMS REPRESENTED HERE, AS WELL AS SPECIAL PROVISIONS IN SECTION 14.
See Dispute Resolution below to understand that by accepting this TO, you and Textual are each waiving the right to a trial by jury or to participate in a class action.
"Site" means the website and all related services provided by us, as well as all subdomains of Textual.com. This also includes hosted registration forms where Subscribers Opt In to receive Text Messages.
"User" means the individual or entity that uses the Platform.
“Account” means Textual Client access to Textual’s platform.
“Subscriber(s)” means the Recipients of text message marketing sent through the Textual services by our Clients, Brands, Businesses and Merchants.
“Textual Subscriber Account” means a Subscriber who is subscribed to a Brand’s text message marketing program, and who has signed up for a Textual account which includes Payment Profile stored with Textual, as well as Textual messaging services. (That may continue as long as the Textual Subscriber belongs to at least one businesses’ Text Message Program, and as long as they have not unSubscribed)
"Service" means the text message marketing service, or Platform, as well as text message commerce features provided by the Site.
"Content" means the information, data, text, graphics, images, or other materials uploaded or provided by the User.
“Client(s)” means any Merchant, Client of Textual, Business, Retailer or Brand that uses the Textual platform for marketing and commerce purposes.
1. General Terms and Conditions.
a. Description. The Site provides you with information about our products and services. If you have an Account (see below), then you may gain access to a portion of the Site that will allow you to send text or electronic mail messages that may include marketing promotions, surveys, conversations, and other materials (collectively, “Messages”) to Subscribers (defined below).
The Site also provides Text Commerce features allowing you to send product offers for immediate purchase by text message using various technologies.
If you have an Account, you also may gain access to certain tools to collect the phone number, email address or other contact information of Subscribers.
b. Changes to this TO. You understand and agree that Textual may change this TO at any time without prior notice. Textual will endeavor to provide you with prior notice of any material changes. The current, effective copy of this TO will be posted at https://www.Textual.com/termsofuse. The revised TO will become effective at the time of posting on the Site, and your use of the Site after such time will constitute your acceptance of the revised TO.
c. Consideration. Textual provides you with access to the public-facing portions of the Site for free. In return for enjoying this free access, you acknowledge and agree that Textual may generate revenues, increase goodwill or otherwise increase the value of Textual from your use of the public-facing portions of the Site, and you will have no right to share in any such revenues, goodwill or value whatsoever.
e. Jurisdictional Issues. The Site is controlled and operated by Textual from its offices in the State of Idaho. Textual makes no representation that materials on the Site are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Site from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
f. Eligibility. The Site Is Not For Persons Under The Age Of 13 Or For Any Users Previously Suspended Or Removed From The Site By Textual. If You Are Under 13 Years Of Age, Then You Must Not Use Or Access The Site At Any Time Or In Any Manner. Furthermore, by using the Site, you affirm that either you are at least 18 years of age or have been authorized to use the Site by your parent or legal guardian who is at least 18 years of age.
2. Accounts and Messaging
a. Log-In Credentials. While you may always browse the public-facing portions of the Site without registering with us, in order to enjoy the full benefits of the Site you must register an account with us (“Account”). We will create an Account for you, until such time as the automatic Account Creation process is completed.
b. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your log-in credentials. You agree to notify Textual immediately at email@example.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Textual will not be liable for any loss or damage arising from unauthorized use of your log-in credentials prior to you notifying Textual of such unauthorized use or loss of your log-in credentials. Separate log-in credentials may be required to access External Sites (defined in Section 7 below).
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information as Textual requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this TO, cause damage to or impair the Site, infringe or violate any third party rights, damage or bring into disrepute the reputation of Textual, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Textual may terminate your Account immediately without notice to you and without any liability to you or any third party.
d. Sending Messages. You represent, warrant, and covenant that when using the Site to send Messages, you will (i) comply with all applicable laws, regulations, and rules governing such Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, Canada’s Anti-Spam Legislation (CASL); (ii) comply with all applicable industry best practices; (iii) send Messages only to individuals from whom your Organization has obtained the legally required consent to do so (“Subscribers”); (iv) promptly notify Textual of all requests made by Subscribers to stop receiving Messages from Textual or your Organization; (v) comply with the General Data Protection Regulation, or GDPR; and (vi) if using the Site to send email, comply with the Email Acceptable Use Policy. As used in this Section, “Organization” means any company, entity or organization on whose behalf you access and use the Site to send Messages to Subscribers.
3. Intellectual Property Rights
a. License. Subject to your complete and ongoing compliance with this TO, Textual hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Site in strict compliance with the provisions of this TO.
b. Content. Except for User Content (defined in Section 4.a below), the content that Textual provides to you on the Site, including, without limitation, any text, graphics, software, interactive features, information or other materials, is protected by copyright or other intellectual property rights and owned by Textual or its licensors (collectively, the “Textual Content”). Moreover, Textual or its licensors own all design rights, database and compilation rights and other intellectual property rights in and to the Site, in each case whether registered or unregistered, and any related goodwill.
c. Marks. The Textual trademarks, service marks, and logos (collectively, the “Textual Trademarks”) used and displayed on the Site are Textual’s registered and/or unregistered trademarks or service marks. Any other product and service names located on the Site may be trademarks or service marks owned by third parties (collectively with the Textual Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Textual or the applicable third party, Textual’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any website without Textual’s prior express written consent. All goodwill generated from the use of any Textual Trademark will inure solely to Textual’s benefit.
d. Restrictions. Textual hereby reserves all rights not expressly granted to you in this Section
Accordingly, nothing in this TO or on the Site will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Site or any Textual Content or Trademarks located or displayed on or within the Site.
4. User Content.
a. Definition. “User Content” means any content that you post, submit or otherwise transmit (collectively, “Post”) to the Site, including, without limitation, text, photographs and/or any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws. For clarity, User Content excludes Textual Content and Feedback (defined below).
b. Your Rights to User Content. YOU RETAIN COPYRIGHT AND ANY OTHER PROPRIETARY RIGHTS THAT YOU MAY HOLD IN ANY USER CONTENT THAT YOU POST TO THE SITE SUBJECT TO THE RIGHTS YOU GRANT IN THIS TO.
c. License to Textual. If you Post User Content to the Site, then you hereby grant to Textual a worldwide, non-exclusive, transferable, and royalty-free right and license to host, store, transmit, reproduce, distribute, create derivative works from, publicly perform and display and otherwise use and exploit your User Content, in any media now known or later created, to provide, improve, advertise, promote and market the Site and Textual’s business.
d. Representations and Warranties. You are solely responsible for your User Content and the consequences of Posting User Content on the Site. By Posting User Content on the Site, you affirm, represent, and warrant that: (i) you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use, and to authorize Textual to use, your User Content as necessary to exercise the licenses granted by you in this Section; and (ii) your User Content, and the use of your User Content as contemplated by this TO, does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) cause Textual to violate any law or regulation.
e. Disclaimer. We are under no obligation to edit or control User Content that you or other users Post on the Site, and will not be in any way responsible or liable for User Content. Textual may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this TO or is otherwise objectionable, such as, without limitation, User Content that Textual determines is or could be interpreted to be infringing, defamatory or otherwise unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promoting discrimination, bigotry or racism (collectively, “Objectionable Content”). You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Textual with respect to User Content. We expressly disclaim any and all liability in connection with User Content.
5. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Respect of Third-Party Rights. Textual respects the intellectual property of others and takes the protection of intellectual property seriously, and we ask our users to do the same. Infringing activity will not be tolerated on the Site.
b. Repeat Infringer Policy. Textual’s intellectual property policy is to (i) remove or disable access to material that Textual believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the Site; and (ii) remove any User Content Posted to the Site by “repeat infringers.” Textual considers a “repeat infringer” to be any user that has uploaded User Content to the Site and for whom Textual has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. Textual has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Textual’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Site has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Textual with the user alleged to have infringed a right you own or control, and you hereby consent to Textual making such disclosure. Your communication must include substantially the following:
i. a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
iii. identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Textual to locate the material;
iv. information reasonably sufficient to permit Textual to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v. a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
d. Designated Agent Contact Information. Textual’s designated agent for receipt of Notifications of Claimed Infringement (“Designated Agent”) can be contacted at:
Via E-mail: firstname.lastname@example.org; or
Via U.S. Mail: 520 W Idaho St, Boise, ID 83702
e. Counter Notification. If you receive a notification from Textual that material you Posted on the Site has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Textual with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Textual’s Designated Agent through one of the methods identified in Section 5.d above and include substantially the following information:
1. your physical or electronic signature;
ii. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
iv. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Textual may be found, and you will accept service of process from the person who provided notification in accordance with Section 5.d above or an agent of such person.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Textual in response to a Notification of Claimed Infringement, then Textual will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Textual will replace the removed User Content or cease disabling access to it in 10 business days, and Textual will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Textual’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Textual’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Textual] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Textual reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
6. Restrictions on Use of the Site. Acceptable Use.
a. Without limiting any other TO of this TO, when using the Site, you agree not to (and not to attempt to):
i. decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Site;
ii. use any device, software or routine to interfere or attempt to interfere with the proper working of the Site, or any activity conducted on the Site;
iii. delete or alter any material Textual makes available on the Site;
iv. frame or link to any of the materials or information available on the Site;
v. use or exploit any Trademarks or Textual Content in any manner that is not expressly authorized by this TO;
vi. access, tamper with, or use non-public areas of the Site, Textual’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Textual’s providers;
vii. provide any false personal information to Textual;
viii. create a false identity or impersonate another person or entity in any way;
ix. restrict, discourage, or inhibit any person from using the Site;
x. use the Site, without Textual’s prior express written consent, for any commercial or unauthorized purpose;
xi. gain unauthorized access to the Site or personally identifiable information, or to other computers or websites connected or linked to the Site;
xii. Post any Objectionable Content;
xiii. Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Site or communications equipment and computers connected to the Site;
xiv. violate any federal, state, or local laws or regulations or the TO of this TO; orxv. assist or permit any person in engaging in any of the activities described above.
7. External Sites
The Site may contain links to other websites or other online properties that are not owned or controlled by Textual (collectively, “External Sites”). The content of External Sites is not developed or provided by Textual. Textual is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on External Sites. You should contact the site administrator or Webmaster for External Sites if you have any concerns regarding content located on those External Sites. You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any TO of service or similar TO imposed by any External Site in connection with your use of External Sites.
Our own staff works to develop and evaluate our own product ideas and features, and we pay close attention to the interests, feedback, comments, and suggestions we receive from the user community.
If you choose to contribute by sending Textual or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following TO will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Textual, you agree that:
a. Textual has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Textual is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant Textual perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge, and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
9. Dispute Resolution
a. General. In the interest of resolving disputes between you and Textual in the most expedient and cost-effective manner, you and Textual agree that any dispute arising out of or in any way related to this TO or your use of the Site will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this TO or your use of the Site, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this TO.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS TO, YOU AND Textual ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 9.a above, nothing in this TO will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Textual will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this TO, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Textual. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Textual’s address for Notice is: 520 W Idaho St, Boise, ID, 83702, Attn: CEO. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Textual may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Textual must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Textual prior to selection of an arbitrator, Textual will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Textual in settlement of the dispute prior to the arbitrator’s award; or (C) $100.
e. Fees. If you commence arbitration in accordance with this TO, Textual will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Idaho, Idaho, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Textual for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. Notwithstanding anything in this TO to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 9.
f. No Class Actions. YOU AND Textual AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Textual agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. Except as otherwise provided in this TO, if Textual makes any future change to this arbitration provision, other than a change to Textual’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Textual’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Textual.
h. Enforceability. If Section 9.f above is found to be unenforceable or if the entirety of this Section 9 is found to be unenforceable, then the entirety of this Section 9 will be null and void.
10. Limitation of Liability and Disclaimer of Warranties
THE TO OF THIS SECTION 10 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. NEITHER Textual NOR ITS AFFILIATES (COLLECTIVELY, “Textual PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SITE OR ANY CONTENT THEREON. ACCORDINGLY, THE SITE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE Textual PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. CONSEQUENTLY, YOU AGREE THAT YOU SOLELY ASSUME ALL RISKS ARISING FROM YOUR USE OF THE SITE.
b. WITHOUT LIMITING SECTION 10.a, THE Textual PARTIES DO NOT WARRANT THAT THE SITE AND ANY CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO Textual PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. IN NO EVENT WILL ANY Textual PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SITE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF THE Textual PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Textual’S LIABILITY, AND THE LIABILITY OF ANY OF THE OTHER Textual PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING FROM THIS TO IS LIMITED TO U.S. $100.
11. Third Party Disputes.
ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SITE IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY IRREVOCABLY RELEASE THE Textual PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Textual Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (i) your breach of this TO; or (ii) your access to, use, or misuse of the Textual Content, Trademarks or the Site; or (iii) any allegation that you used the Site, or otherwise caused us, to send a Message in violation of any applicable law, rule, regulation or industry best practice. Textual will provide notice to you of any such claim, suit, or proceeding. Textual reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section if Textual believes that you are unwilling or incapable of defending Textual’s interests. In such case, you agree to cooperate with any reasonable requests assisting Textual’s defense of such matter at your expense.
13. Term and Termination of the TO.
a. Term. As between you and Textual, the term of this TO commences as of your first use of the Site and continues until the termination of this TO by either you or Textual.
b. Termination. You may terminate this TO by sending written notification to Textual at email@example.com and terminating your use of the Site. Textual reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to all or any part of the Site or to terminate this TO at any time without prior notice or liability if you breach any provision of this TO or violate the rights of any third party on or through the Site. Textual reserves the right to change, suspend, or discontinue all or any part of the Site at any time without prior notice or liability. Sections 1(b), 1(c), 1(e),1(f), 2(b), 2(d), 3(b), 3(c), 3(d), 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and all defined TO used therein will survive the termination of this TO indefinitely.
14. Textual Subscriber Accounts - Subscribers
a. As a Subscriber, or Textual Subscriber Account, to the Textual services, offered to you by one of our Clients, you agree to this TO.
TEXTUAL RESERVES THE RIGHT TO SEND TEXT MESSAGES DIRECTLY TO YOU, AS LONG AS YOU ARE SUBSCRIBED TO AT LEAST ONE ACCOUNT THAT OFFERS A TEXT MESSAGE PROGRAM THROUGH TEXTUAL. WE MAY FROM TIME TO TIME SEND YOU MESSAGES TO UPDATE YOUR ACCOUNT, COLLECT PERSONAL INFORMATION, OR OTHERWISE COMMUNICATE OUR SERVICES TO YOU. IF YOU ARE UNSUBSCRIBED FROM ALL BUSINESS ACCOUNTS ON THE PLATFORM, THEN YOUR TEXTUAL SUBSCRIBER ACCOUNT WILL BE INACTIVE.
You may have your Account permanently deleted from the Textual platform by contacting us at the following Address:
Textual.com, Inc. (Attn: Accounts)
520 W Idaho St
Boise, ID 83702
Subscribers are the recipients of text message marketing programs sent by Textual Clients, i.e. any merchant, ecommerce stores, retail stores.
If you have signed up to receive product offers via Text Message, then you are a Textual Subscriber and this Agreement relates to you.
Textual Subscriber Accounts are created when a User provides their mobile phone number to a Client (any merchant, business, ecommerce site and retailer) of the Textual Site in order to receive promotions of goods and services via text message. Subscribers may also be known as Customers, especially if they purchase a product via text message that is offered by one of the Textual Clients.
Textual Clients are responsible for following all TCPA and CTIA guidelines that govern Text Message Marketing.
Textual is responsible for regulating the Use of the Platform, and making sure all transactions are securely tokenized.
b. Textual Subscriber Account Protections and Compliance
Your protections as a Recipient of Text Messaging programs are as follows:
Written Consent – Checkbox at Opt In announcing program details, including frequency and data rates disclosure. It is your right to see a clear Call to Action which explains the marketing program you are opting in to receive. You are required to check the checkbox for opt in acknowledgement.
Opt In Confirmation Message – For recurring programs, Subscribers should receive an Opt In Confirmation.
Frequency – All Subscribers should receive notification about the frequency of messages they should expect to receive.
Disclosures – Standard disclosure for Text message marketing is that Msg&Data Rates May Apply. Subscribers must receive this.
Honoring Opt Out – Subscribers should receive clear Opt Out instructions in the confirmation notifications. STOP, END, CANCEL, UNSUBSCRIBE, and QUIT are interpreted that the Subscribers wants to Opt Out. Client may send one more confirmation text confirming the Opt Out.
All Clients using the Textual Platform have agreed to follow Text Message marketing guidelines. These guidelines can be found here: https://www.twilio.com/learn/call-and-text-marketing/guide-to-us-sms-compliance
c. Your Purchases made through the Textual messaging platform
As a Subscriber to a Client’s Text-to-Buy program running on the Textual platform, you will receive Text Messages from Merchants that have product offers that can be purchased directly by replying with a keyword, e.g. Quantity or Yes.
Your purchases are stored with Textual and submitted to the Merchant’s ecommerce platform where they are fulfilled normally.
Textual can not guarantee that your purchase attempts will be transacted with the Merchant, and any attempts to make a purchase could be impinged by Merchant’s inventory, fulfillment capacities and operations.
Textual is not responsible for any fulfillment of products purchased through Text Messaging.
If you have any complaints, concerns, issues with your purchased products, you must contact the Merchant directly to discuss the situation. You can do this by REPLYING WITH A KEYWORD - HELP.
Textual maintains your payment profile in a tokenized vault, completely secured and stored on Stripe servers if a credit card is included in your payment profile.
15. International Use
Because this Site can be accessed internationally, you agree to comply with all local laws, rules, and regulations including, without limitation, all laws, rules, and regulations in effect in the country in which you reside and the country from which you access the Site. The information on this Site is not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or which would subject Wolverine or its affiliates to any registration requirement within such jurisdiction or country. Any offer for any product made on this Site is void where prohibited.
This TO is governed by the internal substantive laws of the State of Idaho without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Textual as a result of this TO or use of the Site. If any provision of this TO is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this TO, which will remain in full force and effect. Failure of Textual to act on or enforce any provision of this TO will not be construed as a waiver of that provision or any other provision in this TO. No waiver will be effective against Textual unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. This TO constitutes the entire agreement between you and Textual with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This TO will inure to the benefit of our successors and assigns. You may not assign this TO or any of the rights or licenses granted hereunder without the prior express written consent of Textual. Textual may assign this TO, including all its rights hereunder, without restriction. For the purposes of this TO, an assignment includes, without limitation, any merger, acquisition of stock or assets, change of control or similar transaction.
17. Contact Us
If you would like to contact us in connection with your use of the Site, then please contact us at 520 W Idaho St., Boise, ID 83702., or by email at firstname.lastname@example.org.
Last Updated: January 25, 2022
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